Excerpt: - - 48 where the plaintiff's suit for partition based on exclusive ownership was bound to fail, he was allowed to amend the plaint so as to base his claim on co-ownership......by the amendment he sought to plead that by reason of the first defendant's death the whole of the suit property passed to him according to hindu law, that the plaintiff had absolute right to obtain possession thereof and that defendants 3 and 4 had no right whatever to the suit property, the will set up by them and the cowle relied upon by the fifth defendant not being genuine. consequential amendments were also sought in the paragraphs relating to the cause of action and the reliefs prayed for. he asked for delivery of possession of the schedule property ejecting the defendants therefrom and an order directing payment of the future profits from the date of the plaint until delivery. the application was opposed by defendants 3 and 4 and was, as stated before, dismissed by the learned.....

Judgment:

yahya Ali, J.

1. This is an application to revise the order of the District Munsiff of Ramachandrapuram rejecting the petitioner's application under Order VI, Rule 17 of the Civil Procedure Code for amending the plaint filed by him in O.S. No. 112 of 1944. The plaintiff alleged in the plaint that he was adopted in 1922 by his paternal uncle who was the first defendant. The first defendant had a daughter who was married to Surayya. It was averred in the plaint that the first defendant under the advice of his daughter was making attempts to alienate property belonging jointly to the plaintiff and the first defendant and that in doing so he had granted long term leases to the second defendant in respect of some of the joint family properties. That was urged as the ground for the plaintiff, as the adopted son of the first defendant, to ask for partition of his half share and separate possession thereof. The plaint as originally framed was upon this basis and the relief that was asked for was to declare the plaintiff's right to a half share in the plaint schedule property which consisted of one item of wet land measuring an extent of one acre and 12 cents. It was also prayed that the property should be divided into two equal shares and that separate possession of one of the shares should be delivered to the plaintiff and other consequential reliefs by way of future profits, etc., were also asked for. The suit was filed on the 26th June, 1944. The first defendant died in August, 1944, before the service of summons. Thereupon an application was made for bringing on record his widow and daughter and one more alienee as defendants 3, 4 and 5 respectively. These were added. Defendants 3 and 4, namely, the widow and daughter, filed a written statement denying the alleged adoption and propounding a will said to have been executed by the first defendant on the 24th August, 1943, by which it was provided by the testator that the rights in his property should pass on his death to his wife (the third defendant) with a life interest and thereafter it should pass to his daughter (the fourth defendant) with absolute rights. As a consequence arising from the death of the first defendant and because of the will set up by defendants 3 and 4 the plaintiff felt obliged to seek an amendment of the plaint in order to ask for reliefs appropriate to the altered situation. By the amendment he sought to plead that by reason of the first defendant's death the whole of the suit property passed to him according to Hindu Law, that the plaintiff had absolute right to obtain possession thereof and that defendants 3 and 4 had no right whatever to the suit property, the will set up by them and the cowle relied upon by the fifth defendant not being genuine. Consequential amendments were also sought in the paragraphs relating to the cause of action and the reliefs prayed for. He asked for delivery of possession of the schedule property ejecting the defendants therefrom and an order directing payment of the future profits from the date of the plaint until delivery. The application was opposed by defendants 3 and 4 and was, as stated before, dismissed by the learned District Munsiff who dealt with the whole matter after setting out the facts in brief in this way. He said:

To put the whole thing very shortly, the petitioner now wants to convert the suit which was laid on the basis of joint possession into one where possession is sought for, admitting that the plaintiff never had it. Such a change, of course, completely alters the nature of the suit and an amendment of this nature cannot be allowed.

He relied for this purpose on the decision of this Court in Vaithilingam v. Natesa I.L.R. (1912) Mad. 529.

2. Before dealing with the decision bearing upon the question, it is necessary to point out that the language of Order VI, Rule 17 is, as contrasted with the terms of its predecessor, Section 53 (c) very wide. The relevant portions of the present rule provide that the Court may at any stage of the proceeding allow either party to alter or amend his pleadings in such manner as will be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. The statutory test therefore. is whether the alteration of the pleadings or amendment thereof that is asked for is just or whether it is necessary for the purpose of determining the real questions in controversy between the parties. In interpreting and applying this rule the Courts have applied from time to time various tests. While it is recognised that, in order to avoid multiplicity of suits and to enable the final determination of all questions arising in the litigation, the rule should be administered in a fairly liberal manner, it has at the same time been emphatically laid down that, under the guise of alteration or amendment of the pleadings, a party should not be allowed to substitute one cause of action for another or to change the subject matter of the suit. See Ma Shwe Mya v. Maung Mo Hnaung (1921) L.R. 48 IndAp 214 : I.L.R.Cal 48.

3. In a very early case decided under the old Section 53 (c) it was pointed out in Kasinaih Das v. Sadasiv Patnaick I.L.R. (1893) Cal. 805 that the restriction contemplated by that section was only as to the nature of the suit; the law prohibits any such amendment as would change the fundamental character of the suit; for example a plaint cannot be so amended as to convert a claim based on contract into an action on tort. It was held in that case that an alteration in the relief does not amount to a change in the nature or character of the suit. The same idea was put in a forcible way by Baguley, J., in E.K.S. Chettiar Firm v. Maung Min Maung I.L.R.(1912) Mad. 529 a case decided under Order VI, Rule 17 thus:

It will be seen therefore that the one thing which must not be altered by an amendment is the fundamental character of the suit; and I understand that the fundamental character of a suit must refer to the foundation on which it is based. It is the foundation on which a suit is based and not the prayer in the plaint that determines its fundamental character.

That was a case where the suit as originally framed was for possession of certain properties which had been hypothecated. The purpose of the amendment was to convert the suit into a suit for redemption of the mortgages and it was held by the learned Judge that all that the appellant sought by the amendment was to ask for a different relief based on the same facts and that he left the foundation of his suit entirely unchanged.

4. In Sultan Abdul Kadir v. Mohammed Esuf Rowther (1921) L.R. 48 IndAp 214 : I.L.R. Cal. 48 where the plaintiff's suit for partition based on exclusive ownership was bound to fail, he was allowed to amend the plaint so as to base his claim on co-ownership. I may also refer to the decision of Pakenham Walsh, J., in Mangammal v. Rangappa Naicker I.L.R.(1893) Cal. 805. There the plaintiff had first sued for an injunction against the defendants restraining them from trespassing on the plaintiff's land. She contended that her husband was divided from his brother, the first defendant, 35 years ago and that the suit lands fell to her husband's share and he had been enjoying them until his death and after his death she was in possession and enjoyment thereof. The defendants admitted the alleged partition but denied that the property in question ever formed part of the joint family property. Upon this averment of the defendants the plaintiff asked for leave to amend the plaint by basing her title on adverse possession against the defendants for twelve years and asking for a declaration that the suit 1 properties were in her possession for the statutory period and as such belonged to her. The amendment asked for was allowed and the learned Judge after referring to some of the decisions bearing on the point found that the amendment justly developed the original cause of action and there was no objection to the amendment.

5. Reliance was placed in that case on Sultan Abdul Kadir v. Mohammed Esuf Rowther (1921) L.R. 48 IndAp 214 : I.L.R. 48 Cal. 832 (P.C.) already cited and the decision of Jackson, J., in SomasundaraBhattar v. Muthu Thevar 4. In the last mentioned case the plaintiff had averred in the original plaint that the impugned sale had been obtained from him when he had just attained majority by imposing upon him: he subsequently applied to alter it by saying that he was actually a minor at the time of the execution. In these circumstances Jackson, J., remarked that there was no objection to an amendment which justly developed the original cause of action. The learned advocate for the respondent relied on the decision in Vaithilingam v. Natesa I.L.R.(1912) Mad. 529 which has been cited in the judgment of the lower Court. That was a case where a suit in ejectment was sought to be converted into a suit for partition which by its nature necessitated the bringing into hotchpot of other properties and the adjudication of the various questions relating to all the assets and liabilities of the family, the validity of alienations and other consequential matters. That would obviously mean a variation of the fundamental character of the suit and a substitution of the cause of action.

6. It is next contended by the learned Counsel for the respondent that the fundamental character of the suit as originally framed has been altered in this case by 1 reason of the amendment and that therefore the amendment was rightly disallowed. His point of view may be put thus : On the filing of the plaint an immediate severance in status was effected in law between the plaintiff and the first defendant. As the result of the death of the first defendant the plaintiff, if he could substantiate his case of adoption, would be entitled to a half share in the property as a coparcener with his adoptive father and the other half can be claimed only in the capacity of an heir at law. The original suit was on the basis of his being a coparcener and as such entitled to a partition of his undivided share and separate possession thereof. For that purpose he averred in the plaint that he was enjoying possession of the joint family properties along with his adoptive father. In the amended. plaint, however, he claimed, the entire property, half of it necessarily as a coparcener with his deceased father and the other half as his heir; and for this purpose he alleged that, the entire property being in the possession of the widow and the daughter of the deceased first defendant, possession thereof should be delivered to him. The original plaint was on the basis of joint possession, while the amended plaint is on the basis of the plaintiff being out of possession. In other words, the suit as originally filed was for partition while the amended plaint is for ejectment. This, it is argued, amounts to an alteration of the fundamental character of the suit. It is also pointed out that defendants 3 and 4 having been brought on the record as the legal representatives of the defendant, they can only proceed with the suit as it stood at the time of the first defendant's death, under the provisions of Rule 4(1) of Order XXII and they can raise only such defences as they can in the capacity of legal representatives under Sub-rule 2 of Rule 4 of Order XXII.

7. After giving attentive consideration to this argument I am unable to agree that having regard to the nature of the original and amended pleadings there is such variation thereof in the amendment asked for that, in giving effect to the true spirit of Order VI, Rule 17, the amendment ought to be refused. Obviously, the necessity for the amendment arose out of circumstances which happened after the filing of the suit, namely, the death of the first defendant. The real basis or foundation of the claim in either situation is the alleged adoption. If the adoption is found in plaintiff's favour, he will be entitled to succeed, both with regard to the half share as claimed in the original plaint and with regard to the other half which he claims as heir at law in the amended plaint, provided that the will propounded by defendants 3 and 4 does not stand in his way. Much stress is laid upon the fact that while in the first plaint joint possession was put forward, in the amended plaint the case was that the plaintiff was out of possession and it was urged that he had a motive in altering this part of the case because he wanted to sue in forma pauperis. But the kind of possession that was meant when joint possession was claimed along with the first defendant was such possession as an undivided coparcener has in the joint family property when it is under the management of the kartha of the family. The plaintiff's case is that defendants 3 and 4 are now in actual physical possession of the entire property. Consequently it was a necessary and just development of his original case that he should ask for possession of the same on the strength of his alleged right of adoption and in doing so I am unable to hold that there is an alteration or variation of the fundamental character of the suit or that it is a case where one cause of action has been substituted for another. There is no new cause of action as the title remains the same and in any case there is no prejudice caused to the defendants.

8. I would for these reasons allow the revision petition and set aside the order of the District Munsiff and allow the amendment of the plaint prayed for in I.A. No. 630 of 1945 in O.S. No. 112 of 1944 on his file.

9. The question of granting leave to the plaintiff to sue in forma pauperis on the amended plaint is left open and will be decided in the Court below on its merits. It will be open to the defendants to file additional written statements in order to raise if so advised, such pleas as may be necessitated by the amendment of the plaint. The petitioner will get his costs here and in the Court below.